The Supreme Court on Thursday struck down a Biden administration mandate that large businesses require their employees to either be vaccinated or tested once a week for the coronavirus. In a 6-3 order, the justices blocked an Occupational Safety and Health Administration (OSHA) emergency rule for businesses with more than 100 employees — one that would have impacted more than 80 million workers.

The justices did, however, allow a vaccination mandate by the Centers for Medicare and Medicaid Services for health-care workers at some 76,000 federally funded facilities to stand.

“Today’s decision by the Supreme Court to uphold the requirement for health care workers will save lives: the lives of patients who weeks care in medical facilities, as well as the lives of doctors, nurses, and others who work there,” Biden said. “At the same time, I am disappointed that the Supreme Court has chosen to block common-sense, life-saving requirements for employees at large businesses that were grounded squarely in both science and law.”

OSHA had estimated that the ruling for large businesses would have saved more than 6,500 lives and prevented 250,000 hospitalizations in the next six months.

Michelle Mello, a professor of health policy in the School of Medicine’s Department of Health Policy and professor of law at Stanford Law, explains the legal and health implications of the two rulings. William B. Gould, a professor (emeritus) who specializes in labor law at Stanford Law, takes a deep look at the OSHA regulations.

Though they struck down the mandate for large companies, they allowed the more limited one requiring health-care workers at federally funded facilities to be vaccinated. Don’t some of those large companies also receive federal funding or tax breaks and subsidies? Or is it that comparing apples to oranges?

Mello: These seem like similar situations: both cases involved agencies flexing their muscle to require the organizations they regulate to do something, and both turned on the Supreme Court’s reading of how broad a grant of power Congress intended to give the agencies. But legally, that’s where the similarity ends. The legal authorities marshaled to impose the mandates were quite different.

In the case involving the Center for Medicare and Medicaid Services’ (CMS’s) rule that workers in health-care facilities get vaccinated, the agency was acting through its authority to impose conditions on facilities’ participation in the Medicare and Medicaid programs.  If you’re a hospital and you want to bill these programs for services you provide to beneficiaries, you must do a lot of things to prove you’re set up to provide safe care. The description Congress gave of what CMS can require as a condition of participation is broad, and CMS has long required other things to prevent transmissions of communicable diseases and infections.

In the case involving the Occupational Health and Safety Administration’s (OSHA’s) rule that large employers ensure that their employees are either vaccinated or get tested regularly, the agency was using its authority under a statute called the Occupational Safety and Health Act of 1970 to regulate workplace safety.  The scope of OSHA’s authority under this law doesn’t have anything to do with whether the employer gets federal funding or not (the Biden Administration imposed a separate rule for employers, like Stanford University, that are federal contractors). And a majority of the Supreme Court justices read OSHA’s authority under that statute as really quite narrow.

So why didn’t the Court find that this was a workplace safety issue that OSHA could address with a vax-or-test requirement?

Mello: Basically, the majority said Congress only intended to give OSHA the power to address hazards that are confined to the workplace setting. They distinguished COVID as being in the category of “day-to-day dangers that all face,” likening it to risks like crime and air pollution. They were willing to acknowledge that some workplaces might have such an elevated risk of COVID transmission as to make COVID an occupational hazard (for example, labs working with the virus, or highly crowded, cramped environments), but said OSHA’s rule swept in nearly all workplaces — and so went much too far.

What’s driving the majority’s stance is concern that unelected officials are making decisions with sweeping implications — decisions that in our democratic system must rest with more accountable officials. In other words, if Congress wants to do something this big, it needs to do it directly or state very clearly that an agency is allowed to do it.

The three dissenters in the case don’t disagree with that principle, but think the majority engaged in some contorted thinking to reach the conclusion that Congress didn’t give OSHA the authority to address COVID.  They point out that the statute makes no distinction between hazards that are confined to the workplace and those that also exist outside it. Fires and unsafe drinking water are also hazards workers may encounter off the job, for example, but that doesn’t mean they don’t still fall within OSHA’s purview. And, they note, OSHA’s rule does exempt workplaces where the risk of COVID transmission is low, so it’s not overbroad.

Has OSHA issued mandates like this before? 

Gould: This is not the first time that OSHA has ventured into this realm. It has undertaken three major initiatives in the past. One was at the time of the HIV crisis when it provided for regulation of so-called blood pathogens, with regard to HIV, hepatitis B and hepatitis C. It also provided rules, which have, for example, imposed requirements for employers to allow workers to have their own drinking cups and drinking facility so that they don’t share with one another and don’t promote the possibility of infectious disease. That was done in construction. And in the area of agriculture, they also devised rules designed to protect workers against dust and heat.

What these rules all have in common, including the one that the Court just struck down, is that they deal with the problems of infectious diseases and they deal with problems that arise both out of the workplace and in the workplace. I mention that because in the discussion and the oral argument, and during the Trump administration that preceded the Biden administration, much of the attention was focused upon what is unique to the workplace—and that OSHA only had jurisdiction in that area.

“Underlying everything else in this dispute is a single, simple question: Who decides how much protection, and of what kind, American workers need from Covid-19?” the three justices who believed the mandate should have been upheld said in their dissent. “An agency with expertise in workplace health and safety, acting as Congress and the president authorized? Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes?” 

Is this the crux of the case? Does OSHA have the right to mandate such regulations?

Mello: It’s right to say that the core issue here is: Who decides? Indeed, three of the conservative justices framed it in the same way: “The question before us is not how to respond to the pandemic, but who holds the power to do so. …[T]hat power rests with the States and Congress, not OSHA.”

But I think it’s also fair to call out the justices in the majority for usurping the roles of both Congress and OSHA through their bizarre reading of the statute. Most people will find it surprising that (even as they don masks to hear oral arguments) these justices don’t consider COVID a workplace hazard. Most members of Congress will as well, I suspect! After all, Congress has already instructed OSHA to do other things to fight COVID in the workplace.

Gould: I think that OSHA has the authority to do it. This is the first time, however, that OSHA has been presented with a problem quite like this. A wide variety of arguments have been put forward to say that OSHA does not have the authority. Chief Justice Roberts noted in oral argument that this problem didn’t exist in 1970 when the statute was passed. Well, of course, we know that all kinds of problems don’t exist at the time when statutes are passed. That’s why we have to have agencies and courts and lawyers and law professors to address changing circumstances—acknowledging that we have new problems that pose new challenges to statutory interpretation.

How much of a setback is this for the national efforts to get to the other side of this pandemic? If the court had ruled the other way, would the mandates/testing really have made a difference considering one-third of the country are adamantly opposed to vaccines?

Mello: It’s definitely a setback. We don’t yet have data on the effect of employer mandates from systematic studies, but reports have been accumulating from different companies showing high levels of compliance. There are certainly some people who will quit their jobs to seek employment in companies not subject to mandates. But many others, at the end of the day, are willing to go along if their jobs are at stake. A national poll conducted in November 2021 found that among the unvaccinated, a little over half said they would “definitely not” get the vaccine but the remainder were more open to it.

It’s important to note that the Court’s opinion doesn’t say employees can’t be required to take the vaccine. It just says OSHA can’t require it under this particular statute. Congress can require it, or states can require it for worksites within their borders. In many states, cities and counties could as well. And in most states, employers can choose it require it on their own. I would expect some of these actors will step in to fill the vacuum left by the Court’s decision.

Aren’t big companies regulating for themselves anyway?

Gould: You know, Tyson has negotiated a collective bargaining agreement with United Food and Commercial Workers imposing vaccination, as has AT&T, Boeing, and a number of major companies. So large companies in the fortune 500 have gone ahead on their own to require vaccinations. The Houston Medical Hospital, where the first round of litigation took place, also imposed vaccination—and were exhibit number one in the argument for OSHA because very few people resigned because of the requirement of vaccination.

So that’s the big concern for employers—that staff will resign if forced to vaccinate? 

Gould: Oh yes. And that looms large, at least in the appendices and the exhibits that have been filed in these cases…that we’re not going to be able to function effectively because we’re going to lose our workers. But I don’t think many of the big companies filed amici. That’s the position of the states that are hostile to President Biden, and about half the states of the Union signed on to a brief challenging this rule.

So, one of the reasons the employers are so worried about vaccine mandates is that they are afraid of losing workers and that fits into a bigger trend going on during the pandemic, doesn’t it? With respect to what people are calling the great resignation, where people are reportedly leaving their jobs in large numbers. What do you make of that?

Gould: Well, I think that the great resignation, as it has come to be called, does fit into this. Workers are increasingly dissatisfied and increasingly hesitant about taking up particular kinds of work. And this hesitancy has been expressed on behalf of and by so called essential workers, workers who have been involved on the front lines of the pandemic. Here we’re speaking of workers in medical facilities for instance, who are part of the other Supreme Court case that involved the government’s authority to require vaccination amongst employees of medical facilities who have contact with patients.

But essential workers are now more widely understood to be a broad category—including employees who have a lot of contact with the public and also those who have been traditionally unorganized and unrepresented, so more vulnerable not only in terms of their exposure to the virus, but also more vulnerable in the workplace, generally, where they are so called marginalized workers who have had very little union representation. And we see now the unions are attempting, in some measure, to either organize such workers or to represent them more effectively, particularly here in California, where the food and commercial workers, for instance, have proposed legislation that provides for various protections for workers in groceries and supermarkets. So not only first protectors such as EMT, police, and fire, but also bus drivers and nursing home attendants and the like.